Procedures for Determining Father, Mother, and Child

mother and child in this relationship.

Up to now, Vietnamese law has not had any provisions on the right of a child to request the Court to determine that the parents who are currently not his or her own are not his or her own. Considering that the right to determine father, mother, and child is a personal right, the subjects in this relationship have equal rights in requesting the competent authority to determine father, mother, and child. However, lawmakers do not raise the issue of the child's right not to recognize father, mother, or child, perhaps to preserve the traditional moral values that are deeply ingrained in the subconscious of Vietnamese people such as: "Father gives birth is not as good as mother raises", always praising the upbringing of parents for their children, even if they are not biological father, mother, or child. However, from the perspective of legal science, this is an issue that needs to be studied to ensure full implementation of the provisions of international law on children's rights, to ensure equality between subjects in requesting to determine father, mother, and child.

Second, according to Article 93 of the 2014 Law on Marriage and Family and Article 15 of Decree No. 71/2011/ND-CP , there are a number of subjects who have the right to request determination of the relationship between father, mother and child as follows:

Article 92 of the 2014 Law on Marriage and Family stipulates: "In case there is a request to determine the father, mother, or child, and the person making the request dies, the relatives of this person have the right to request the Court to determine the father, mother, or child for the deceased requester" [23].

And according to the provisions of Article 15 of Decree No. 71/2011/ND-CP dated August 22, 2011 of the Government detailing and guiding the implementation of a number of articlesAccording to the Law on Protection, Care and Education of Children :

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“1. Children whose parents have not been identified, if requested by the child through a guardian or by the guardian, including cases where the parents have died, the Court shall determine the parents according to the provisions of law. Determining the parents of a child must be considered on the basis of the best interests of the child.

2. Fathers, mothers, guardians, Labor - Invalids and Social Affairs agencies at all levels, Women's Unions at all levels and other agencies, organizations and individuals as prescribed by the law on civil procedure have the right to request the Court to determine the father and mother of a child.

3. The Labor, War Invalids and Social Affairs agencies at all levels and the Women's Union at all levels, upon receiving a request to determine the father or mother of a child, are responsible for investigating, verifying, considering the interests of the child and requesting the Court to determine the father or mother of the child."

Accordingly, even though the person requesting is the deceased father, the father's relatives, the grandchild's grandparents, have the right to request the Court to determine the father of the child. Or for minors or adults who have lost their civil capacity, the subjects with the right to request on their behalf are: Mother, father or guardian; Women's Union, Labor - Invalids and Social Affairs agencies at all levels are organizations that have the right to request the Court to determine the father and mother of the child. Such regulations aim to ensure that those with the right to request the determination of the father, mother and child relationship are not limited in terms of subjects, ensuring the rights and legitimate interests of the parties, especially the rights of the child.

2.1.3. Authority to determine father, mother, child

According to current law, the authority to determine father, mother, and child can be carried out through two procedures: administrative procedures and judicial procedures.

In case of dispute regarding the determination of father, mother, or child, the parties have the right to request the Court to resolve the matter. The Court will accept and try the case according to normal litigation procedures (Articles 88 and 89 of the 2014 Law on Marriage and Family).

In cases where there is no dispute over the determination of father, mother, or child, especially in the determination of father, mother, or child out of wedlock, the mother and father of the child both agree to accept the child, they will go to the competent authority, which is the People's Committee of the commune where the recipient or the person recognized as father, mother, or child resides if:

1. The recognition of father, mother and child as prescribed in this Section shall be carried out if the receiving party and the recognized party are still alive at the time of adoption.

The time of registration of recognition of father, mother, child and the recognition of father, mother, child is voluntary and there is no dispute between those with rights and interests related to the recognition of father, mother, child.

2. An adult child or the guardian of a minor child or an adult child who has lost civil act capacity may also carry out procedures to acknowledge father or mother according to the provisions of this Section, in case the father or mother has died; if the acknowledgement of father or mother is voluntary and there is no dispute between those with rights and interests related to the acknowledgement of father or mother [6].

According to the provisions of Decree No. 06/2012/ND-CP amending and supplementing a number of articles of the Decrees on civil status, marriage and family and authentication, the authority to resolve requests for confirmation of father, mother and child belongs to the People's Committee if the case is voluntary and there is no dispute. Within 03 days from the date of receiving all valid documents, if the recognition of father, mother and child is found to be true and there is no dispute, the People's Committee at the commune level shall register the recognition of father, mother and child. In case of need for verification, the above time limit shall be extended by no more than 05 days.

In Clause 8, Article 1 of Decree No. 06/2012/ND-CP dated February 2, 2012 of the Government on amending and supplementing a number of articles of the decrees on civil status, marriage and family and certification, there is an additional provision: "There is no dispute between those who have rights and interests related to the recognition of father, mother and child" [6]. This provision does not specifically stipulate who are the subjects with related rights and interests. On the other hand, the right to recognize father, mother and child is a personal right that is only attached to the father, mother and child themselves. Disputes here are often property disputes between people such as the current wife of the father or husband of the mother or half-siblings or half-siblings. For example: In the case of a father/mother dying without leaving a will, the property is divided according to the law, between the heirs, brothers and sisters, there is a dispute about the division of the inheritance, the children in wedlock absolutely do not recognize the brother or sister born out of wedlock by their mother or father so as not to have to divide the inheritance further.

Inheritance to others. Such regulations have caused difficulties and obstacles for competent authorities when applying legal documents to resolve cases that occur in practice.

2.1.4. Procedures for determining father, mother and child

Determining father, mother, and child is a very sensitive and complicated issue. According to current law, the authority to determine father, mother, and child can proceed according to two procedures:

First: According to administrative procedures - the type of work under the jurisdiction of the civil registration agency according to civil registration procedures when there is no dispute regarding the determination of father, mother, or child:

“ The competent civil registration agency determines father, mother, and child according to

provisions of law on civil status in cases where there is no disputeaccept. ” [5, Articles 32, 33].

Second: According to judicial procedures - " The court has jurisdiction to resolve the matter"

Identify father, mother, child in case of dispute or requested person

determining that the father, mother, or child has died and the cases specified in Article 92 of the Law

This"(Clause 2, Article 101 of the 2014 Law on Marriage and Family; Clause 4, Article 27 of the Civil Procedure Code).

Thus, based on the nature of the relationship to determine whether there is a dispute between the father, mother and child is the basis for determining the competent authority to determine the father, mother and child. Specifically:

2.1.4.1. Administrative procedures

For children whose parents are legally married, birth registration procedures will be carried out:

A birth certificate is a document issued by a competent authority to record the event of a child's birth and the relationship between the child and his or her parents. This is the first legal basis for recognizing the relationship between father, mother and child. Birth registration by a competent authority is a judicial administrative activity to ensure the implementation of children's rights and the obligations of fathers, mothers and other family members.

for children. According to the law, the time limit for registering a child's birth is 60 days from the date of birth. The person responsible for registering the child's birth is the parent, grandparents or other relatives [5, Article 14]. The competent authority to register the child's birth will be the People's Committee of the commune where the mother resides. If the mother's place of residence cannot be determined, the People's Committee of the commune where the father resides will carry out the birth registration. In case the mother's or father's place of residence cannot be determined, the People's Committee of the commune where the child is actually living will carry out the birth registration [5, Article 13]. Documents required when registering a child's birth according to the provisions of Article 15

Decree No. 158/2005/ND-CP, amended by Decree No. 06/2012/ND-CP, includes two types: Birth certificate and Marriage certificate of the father and mother (if any); in case there is no birth certificate, it can be replaced by a written confirmation from a witness. In case there is no witness, the declarant must make a written commitment that the birth is real. If the civil status officer knows clearly about the marital relationship of the child's parents, the person declaring the birth is not required to present the Marriage certificate of the child's parents.

This Decree has set out the order of priority to determine the authority to register the birth of a child. The Decree has also given the initiative to the civil status judicial officer if in case the marital relationship of the child's father and mother is known, the person registering the birth may only need to present a birth certificate. Thus, compared to the provisions of Decree No. 83/1998/ND-CP dated October 10, 1998 of the Government on civil status registration, the provisions of Decree No. 158/2005/ND-CP represent a great step forward in terms of procedures, authority and place of birth registration.

However, recently Decree No. 06/2012/ND-CP has added "submission of declaration" to the section of valid documents to be submitted. This additional regulation ensures increased responsibility of the declarant regarding the necessary information to help make birth registration accurate.

Administrative procedures to determine father, mother, and child in cases where the father and mother are not legally married

- For the procedure of registering to acknowledge father, mother, child in case the father and mother do not have a legal marriage

This recognition procedure is regulated in detail by law in Article 13, Article 35 of Decree No. 158/2005/ND-CP and amended and supplemented in Clause 8, Clause 9, Article 1 of Decree No. 06/2012/ND-CP. Accordingly, the authority to register the recognition of father, mother, and child belongs to the People's Committee at the commune level. In addition to the declaration, the person performing the procedure must present the child's birth certificate and other documents proving the relationship between father, mother, and child.

Article 32 of Decree No. 158/2005/ND-CP states that the condition for applying the procedure for registering the recognition of father, mother, and child is that there must be "voluntary and no dispute". However, the law does not clearly stipulate who is in dispute. Clause 8, Article 1 of Decree No. 06/2012/ND-CP further states that "there is no dispute between people with related rights and interests".

In addition, the time limit for the Commune People's Committee to resolve the recognition of father, mother, and child has been shortened to 03 days (previously according to Decree No. 158/2005/ND-CP was 05 days) from the date of receiving a complete and valid dossier, if it is considered that the recognition of father, mother, and child is true and there is no dispute. In case of verification, the above time limit is extended to no more than 05 days [6, Clause 9, Article 1]. The new regulation has shown its conformity with the spirit of administrative procedure reform, limiting a number of long-standing backlogs, creating favorable conditions for subjects to register for recognition of illegitimate children. However, such a regulation has also created great pressure for civil status officers when working, such as verification conditions, time to verify whether there is a dispute or voluntary or not?

- For birth registration procedures for children in cases where the father and mother are not legally married

Basically, this procedure is similar to the case of birth registration for a child born in wedlock. However, in the case of birth registration for an illegitimate child whose father cannot be identified, the father's declaration in the birth registration book and the child's birth certificate is left blank. In the case of someone claiming paternity

of the child, the People's Committee at the commune level will combine to simultaneously resolve two matters: Registering the child's birth and registering the adoption of the child [5, Clause 3, Article 15]. In my opinion, this regulation has created conditions for the adoptive parent to simultaneously register the name of the father in the child's birth certificate and birth registration book and can give the child the father's surname right from the time of birth registration.

On November 20, 2014, the National Assembly passed the Law on Civil Status, which will take effect on January 1, 2016. According to Article 24 of the Law on Civil Status , the authority to register for recognition of father, mother, or child is the People's Committee of the commune where the recipient or the person recognized as father, mother, or child resides to carry out the registration of recognition of father, mother, or child. The procedure for registering recognition of father, mother, or child is stipulated in Article 25:

“1. The person requesting to register for recognition of father, mother, or child shall submit an application form in accordance with the prescribed form and evidence proving the father-child or mother-child relationship to the civil status registration agency. When registering for recognition of father, mother, or child, all parties must be present.

2. Within 03 working days from the date of receipt of all documents as prescribed in Clause 1 of this Article, if the recognition of father, mother, or child is found to be correct and there is no dispute, the judicial - civil status officer shall record it in the Civil Status Book, and the person registering the recognition of father, mother, or child shall sign the Civil Status Book and report to the Chairman of the People's Committee at the commune level to issue an extract to the requester.

In case verification is required, the deadline will be extended by no more than 05 working days.”

The above provisions of the Law on Civil Status have inherited the provisions of Decree 158/2005/ND-CP, however, it has not yet stated what evidence is to prove the relationship between father, mother and child. Evidence to prove the relationship between father, mother and child can be the results of DNA testing, letters, documents with the content of the parties recognizing the relationship between father, mother and child, or images recording the feelings and common activities of the subjects... Evidence must ensure objective and relevant properties to have evidentiary value, therefore, DNA testing results will be the most valuable evidence in determining father, mother and child. In the case of children recognizing their dead fathers and mothers, current science can now identify through 63

Non-direct blood relationship analysis method, taking samples from paternal and maternal grandparents with grandchildren, siblings with the same father or mother as the child, the results have an accuracy of over 99%. However, if the parties have disputes, conflicts, or do not voluntarily provide samples for testing, there is no basis for genetic testing. Therefore, it is necessary to have regulations on evidence to prove the DNA test results. If this test result cannot be obtained, then other evidence documents will be considered to indirectly prove the relationship between father, mother and child.

2.1.4.2. Judicial procedures

The determination of father, mother, and child according to judicial procedures is based on the Court's judgment. The right to recognize a child or parent of the parties is respected and protected by law: "A person who is not recognized as the father or mother of another person may request the Court to determine that person is his or her child; a person recognized as the father or mother of a person may request the Court to determine that person is not his or her child" [23, Article 89]; "A child has the right to request recognition of his or her father or mother even in the event that the father or mother has died" [23, Article 90].

Article 101 of the 2014 Law on Marriage and Family stipulates:

“…2. The Court has the authority to resolve the determination of father, mother, and child in cases of dispute or where the person requested to be determined as father, mother, or child has died and in cases specified in Article 92 of this Law.

The Court's decision on determining father, mother, and child must be sent to the civil status registration agency for recording in accordance with the provisions of the law on civil status; the parties involved in the relationship of determining father, mother, and child; relevant individuals, agencies, and organizations in accordance with the provisions of the law on civil proceedings".

In case the mother wants to determine the father of the child, she can submit a request to the District, County, or Town People's Court (collectively referred to as the District People's Court) to resolve the matter of determining the father of the child according to the provisions of Clause 4, Article 27 of the Civil Procedure Code. The Court will proceed to accept and try the case according to procedural law.

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